Satish Chandra, J. - On November 15, 1967, the Sales-tax Officer conducted a survey of the assessees business premises. At that time, he discovered a loose sheet or a parcha containing accounts of sale of Rs. 476/- on that date. At the time of the assessment for the year 1967-68, the assessee produced a parcha which was held to be a fake one and not the parcha which the surveying officer has seen at the time of the survey. On this finding, the books of account of the assessee were rejected and best judgment assessment was passed. The rejection of the books of account was upheld in appeal as well as in revision.
2. In due course, the Sales-tax Officer issued notice under S. 15A (1) (b) of the U.P. Sales-tax Act penalty be not imposed upon them for concealing particular of his turnover or deliberately furnishing inaccurate particulars of the turnover. The assessee contended that the parcha produced by him was the original one which had been seen by the surveying officer. The Sales-tax Officer as well as the Judge (Appeals) rejected this version and held the assessee guilty under clause (1)(b) aforesaid and imposed a penalty, When the matter came up before the Judge (Revisions), he reversed the view taken by the authorities below. He held that from the materials on record, it appears that the parcha produced at the time of the assessment was the same which was seen by the surveying officer. He was impressed by the remark made by the surveying which showed that the assessee was carrying of pawning business as well. The parcha showed that it related to the transactions of pawning. He, therefore, concluded that the version of the assessee was believable and so it would not be safe to infer that there was any wilful concealment or deliberate furnishing of inaccurate particulars of the turnover. He set aside the penalty.
3. At the instance of the Commissioner, Sales-tax U.P., the revising authority has referred the following questions :
(1) Whether on the facts and under the circumstances of this case, there was material to justify the inference that the assessee had concealed the particulars of his or deliberately furnished inaccurate particulars of such turnover so as to attract the provisions of S. 15A (1)(b) of the U.P. Sales-tax Act ?
(2) Whether the Additional Judge (Revisions) Sales-tax, Bareilly, was legally justified in quashing the penalty despite the survey report of 16th November 1967 and the final findings in the case of assessment for 1967-68.
4. The first question seems to have been improperly framed. The grievance of the Commissioner is that there was non material to justify the inference that the assessee had not wilfully concealed the particular or deliberately furnished inaccurate particulars. We, therefore, reframe the question as follows :
'Whether on the facts and, in the circumstance of the case, there was any material to justify the inference that the assessee had wilfully concealed the particulars of the turnover or deliberately furnished inaccurate particulars so as to attract the provisions of S. 15A (1)(b) or the U.P. Sales-tax Act ?'
5. As observed above, the circumstances appearing from the survey report as also from an examination of the parcha in question constituted material in support of their view that there was no wilful concealment or deliberate furnishing of inaccurate particulars. It cannot, therefore, be said that there was no material to support the inference of the revising authority. The first question is, therefore, answered in the negative and in favour of the assessee. The second is a consequential question and has to follow the same result, namely, it is answered against the department and in favour of the assessee. The assessee will be entitled to costs which are assessed at Rs. 200/-.